Exhibit
10.99


 





 


VCampus
Corporation


 


FORM
OF

ONLINE CONTENT CONVERSION AND DISTRIBUTION AGREEMENT


 


This ONLINE
CONTENT CONVERSION AND DISTRIBUTION AGREEMENT (this “Agreement”) is made and
effective as of the     day of
                   
200   (the “Effective Date”), by and between,
                              ,
a                    
corporation (“Publisher”), and VCampus Corporation, a Delaware corporation
(“VCampus”).


 


RECITALS


 


WHEREAS, Publisher
is the owner of certain educational and information materials (the “Content”);
and


 


WHEREAS, VCampus
desires to convert such materials to an online format and distribute such
materials (the “Online Material”), using Internet-based technology and other
distribution methods pursuant to the terms and conditions set forth in this
Agreement; and


 


WHEREAS, the
Content that is the subject of this Agreement is listed on Exhibit A attached
hereto;


 


AGREEMENT


 


NOW, THEREFORE, in
consideration of the mutual covenants set forth herein, VCampus and Publisher
hereby agree as follows.


 


1.                                      Online
Material.


 


(a)           License to Create Online Material.
Publisher hereby grants VCampus a license to create online versions of the
Content (collectively, the “Online Material” and individually, a “title” of the
Online Material). Such license is nontransferable; provided, however, that
VCampus may use third party service providers to convert the Content to Online
Material. VCampus is free to incorporate web-based interactivity, computer
based training concepts or methods and other training and educational methods
or processes in the Online Material. VCampus shall have the right to use its
“Powered by VCampus” logo on the introductory page/screen of each title of
Online Material. Publisher shall own all Online Material and VCampus hereby assigns
all its rights, if any, in and to the Online Material to Publisher. Each of
VCampus and Publisher may only distribute the Online Material pursuant to the
terms and conditions of this Agreement. Any and all fees charged by a party
hereto for the distribution of the Online Material to third parties are as set
forth on Exhibit B attached hereto. All Online Material shall be created
at VCampus’ sole cost and expense.


 


(b)           Review and Approval of Online
Material. VCampus shall deliver each title of the Online Material to
Publisher for review and approval prior to making the same commercially
available. Upon such delivery of a title, Publisher shall have a period of 10
days to review and approve the title, such approval not to be unreasonably
withheld. Publisher’s failure to raise objections within this 10-day period
will be deemed to constitute Publisher’s approval.


 


(c)           Distribution of Online Material. Upon receipt of
Publisher’s approval pursuant to Section 1(b), VCampus may distribute a title
of the Online Material via the Internet or any other electronic media.


 
















 


(d)           Evaluation License. VCampus may distribute a title
of the Online Material on a trial or evaluation basis to end users that request
an opportunity to evaluate and test the title prior to purchasing the title for
use. Such distribution shall be subject to an Evaluation License that shall not
exceed 60 days after the date of delivery. The Evaluation License shall be
subject to the review and approval of Publisher, not to be unreasonably
withheld.


 


(e)           VCampus will have the right to create
sample courses/lessons (“Samples”) deployed on the Internet or other electronic
media (e.g., CD), or in printed format, suitable for supplying samples and
demonstrations without charge for sales and marketing purposes. No fees will be
incurred by either party for the use of such Samples for appropriate sales and
marketing purposes.


 


(f)            Content.  As
set forth in the recitals, the term “Content” shall mean all materials provided
by Publisher to VCampus, which are listed on Exhibit A. Additional books
and other materials may be added to Exhibit A by mutual written
agreement of the parties.


 


2.                                      Rights
Granted.


 


(a)           Distribution. Subject to the
terms and conditions herein and Publisher’s rights set forth in Paragraph 2(d),
Publisher appoints VCampus as the exclusive distributor of the Online Material
for the term of this Agreement. VCampus may distribute the Online Material via
the Internet and any other media that is used to store or transmit digital
works. VCampus may appoint agents, resellers and other distributors
(collectively, the “Subdistributors”) to distribute the Online Material
provided, however, that such Subdistributors are approved in advance by
Publisher and provided further that Subdistributors receive rights no greater
than the rights granted hereunder.


 


(b)           VCampus.com.  VCampus shall make the Online Material
commercially available from its web site www.vcampus.com, or such other web
sites as are agreed to by the parties. The web sites from which the Online
Material is accessible may be hosted on servers that are owned and operated by
VCampus. Such web sites shall offer not less than 99.9% availability to third
parties and shall be maintained and supported (i.e., phone and email support,
etc.) using practices consistent with prevailing best industry practices.


 


(c)           Virtual Campus or “VCampusÔ”.
VCampus shall create and host a Web Site utilizing a unique graphical user
interface and comprising the VCampus-proprietary Learning Management System,
Site Management Tools, and applicable e-learning courseware. VCampus shall
publish, or allow Publisher to publish, the Online Material on the VCampusÔ.  Publisher may publish all or part of the
VCampus e-learning course catalog on the VCampusÔ,
however fees for these non-Publisher courses must be agreed to in writing by
both parties before they are offered by Publisher through the VCampusÔ.
VCampus grants to Publisher a VCampusÔ license, subject
to the terms and conditions contained herein, upon execution of this Agreement.
VCampus shall use commercially reasonable efforts to provide End User access to
the VCampusÔ on a twenty-four hours per day, seven days per
week, basis, except during scheduled maintenance downtime, and subject to
downtime resulting from events beyond the reasonable control of the Company.


 


i.) Reservation of Rights.  The Company does not and cannot review all
material and content provided by Publisher that is published on the VCampusÔ,
whether such information is published by VCampus or the Publisher. VCampus
reserves the right to delete, move, or edit material published on the VCampusÔ
that it, in its sole discretion, deems abusive, defamatory, obscene, in
violation of copyright or trademark laws, or otherwise unacceptable.   Each party shall remain solely responsible
for its content and material that is published on the VCampusÔ.


 


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(d)           Distribution of
Online Material by Publisher. 
Publisher may market and sell the Online Material through Publisher’s
web site or such other sites as are agreed to by the parties. Publisher shall
market and promote the Online Material pursuant to the marketing plan set forth
on Exhibit C attached hereto. Publisher shall update this plan and
provide the updated version to VCampus on an annual basis.


 


3.             Updates to Content.  Publisher shall supply the most current
version of the Content to VCampus. Furthermore, if at any time Publisher shall
make available to the general public a more current release of any component of
the Content, Publisher shall promptly provide VCampus with the more current
release. VCampus shall have no obligation to convert or reprogram such updated
Content in order to enable the Content to be distributed via the Internet.


 


4.                                      Fees,
Reports and Records.


 


(a)           Distribution Fees.
For distribution of the Online Material by VCampus, VCampus shall pay to
Publisher the applicable distribution fees set forth on Exhibit B. For
distributions of the Online Material by Publisher (if any), Publisher shall pay
to VCampus the applicable distribution fees set forth on Exhibit B. All
fees paid hereunder shall be paid in accordance with the payment terms and
conditions set forth on Exhibit B.


 


(b)           Reports. Along with each
periodic fee payment, each party shall provide to the other party an
appropriately detailed statement that shall include: (i) the number of
copies of each Online Material title sold; (ii) the numbers of copies purchased
by institutional end users and the names of the applicable institutional end users;
and (iii) calculations supporting the distribution fees owed. (c)  Special Projects. From time to time,
the parties may engage in special projects (e.g., bulk orders, one-time
discounts, etc.) that encompass terms and conditions outside the scope of this
Agreement. In the event that the parties agree to a special project, the terms
and conditions of the special project shall be set forth on Exhibit D-1
that will be signed by each party and attached hereto. Successive special
projects shall be set forth on Exhibits D-2, D-3, etc. A special
project shall be governed by this Agreement, except that in the event of any
conflict between an Exhibit D-  and the main body of this
Agreement, Exhibit D- shall control.


 


(c)           Auditing. Each party shall
maintain, for as long as such party is distributing the Online Material and for
at least one (1) year thereafter, records sufficient to demonstrate its
compliance with its reporting and payment obligations under this Agreement. For
the purposes of ensuring its compliance hereunder, each party shall make such
records available for inspection and copying by the other party or its
representatives, during normal business hours upon reasonable advance notice.
Each party may at its election engage an independent public accounting firm to
conduct an audit of amounts due it under this Agreement from the other party.
If in the written opinion of such auditors there has been an under-reporting by
a party of more than five percent (5%) of the total amounts due during any
quarterly period, the party that underpaid shall pay the costs of such audit
(up to the amount of the underpayment) in addition to all unpaid amounts then
owing.


 


5.                                      Proprietary
Rights.


 


(a)           Ownership.  VCampus
acknowledges and agrees that the Content and the Online Material and all right,
title and interest therein, is and shall remain the exclusive property of
Publisher and VCampus shall have no rights to copy, use, reproduce, display,
perform, modify or transfer the Content or the Online Material except as
provided herein. Publisher acknowledges and agrees that VCampus shall retain
all its rights in the VCampusÔ.
Title to the VCampusÔ, any updates or
modifications thereto, any


 


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copies thereof, in
whole or in part, and all related copyrights, trade secrets, and documentation
will at all times remain with VCampus, its licensors and/or its suppliers, as
applicable, for VCampus owned library and third party course content.


 


(b)           Trademark Usage. VCampus shall
not use any Publisher trademarks, logos or other identifiers (the “Marks”) in
any manner other than as is expressly provided for in this Agreement, without
Publisher’s prior written approval. VCampus acknowledges and agrees that:
(i) the Marks are and shall remain the sole property of Publisher, and
(ii) nothing in this Agreement shall confer in VCampus any right of
ownership in the Marks.


 


6.                                      Publicity.
Within two weeks of execution of this Agreement, VCampus and Publisher will
jointly issue a press release that is reasonably acceptable to each party.


 


7.                                      Representations
and Warranties.


 


(a)                                  Representations
and Warranties of Publisher. Publisher represents and warrants to VCampus
as follows.


 


(i)            Publisher has all rights and has
obtained all corporate and other approvals, consents, release clearances,
licenses and authorizations needed for the execution and performance of this
Agreement and the grant of rights and licenses hereunder, and neither the
execution nor performance of this Agreement violates or conflicts with any other
agreement of Publisher.


 


(ii)           The Marks and the Content do not and
will not infringe or otherwise violate any copyright or misappropriate any
trade secret or otherwise violate any right of any third party or any laws,
rules or regulations.


 


(b)           Disclaimer. EXCEPT AS SET
FORTH ABOVE, PUBLISHER DISCLAIMS ALL WARRANTIES, BOTH EXPRESS AND IMPLIED,
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.


 


(c)           Representations and Warranties of
VCampus. EXCEPT AS PROVIDED ABOVE, VCAMPUS MAKES NO WARRANTY, EITHER
EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, AS TO ANY MATTER, INCLUDING BUT NOT LIMITED TO, COURSES,
FEATURES OR CAPABILITIES OF THE VCAMPUSÔ,
THE COMPANY SERVER SOFTWARE, OR OTHER SOFTWARE, HARDWARE OR MATTER PRODUCED OR
PROVIDED UNDER THIS AGREEMENT AND ALL PRODUCTS AND SERVICES ARE PROVIDED “AS
IS”. IN ADDITION TO AND WITHOUT LIMITATION OF THE DISCLAIMER OF WARRANTIES
PROVIDED ABOVE IN THIS SECTION 7, THE COMPANY SPECIFICALLY DOES NOT WARRANT,
GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE
USE, OF THE VCAMPUSÔ OR THE ONLINE
MATERIAL, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS,
SECURITY, OR OTHERWISE, AS MAY BE USED PURSUANT TO THIS AGREEMENT.  THE COMPANY ALSO MAKES NO WARRANTY TO PROVIDE
THE ONLINE MATERIAL OR OTHER E-LEARNING COURSES BEYOND 30 DAYS FROM THE DATE OF
STUDENT REGISTRATION INTO THAT PARTICULAR COURSEWARE.  THE COMPANY EXPRESSLY DISCLAIMS ANY WARRANTY
WITH RESPECT TO THE QUALITY, COMPATIBILITY OR CONTINUITY OF THIRD PARTY
TELECOMMUNICATION OR INFORMATION SYSTEMS OR SERVICES, AND WITH RESPECT TO THE
FUNCTIONALITY, OPERABILITY, OR RELIABILITY OF VCAMPUS’ OR ANY THIRD PARTY’S
INTRANET OR DATA SECURITY FEATURES OR SYSTEMS.


 


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8.                                      Indemnification.


 


(a)           By Publisher. Publisher shall
defend, at its expense, any action brought against VCampus to the extent that
it is based on breach of any of Publisher’s obligations, covenants,
representations or warranties under this Agreement, or Publisher’s gross
negligence or willful misconduct. Publisher shall pay all damages and costs
finally awarded against VCampus in any action based on such a claim.


 


(b)           By VCampus. VCampus shall
defend, at its expense, any action brought against Publisher to the extent that
it is based on VCampus’s gross negligence or willful misconduct, or the
activities of VCampus in connection with developing and distributing the Online
Material. VCampus shall pay all damages and costs finally awarded against
Publisher in any action based on such a claim.


 


(c)           Conditions of Indemnification.
The obligations under the foregoing indemnities are subject to the condition
that the party seeking indemnification give the other: (1) prompt written
notice of any claim or action for which indemnity is sought; (2) complete
control of the defense and settlement thereof by the indemnifying party; and
(3) cooperation of the other party in such defense.


 


9.                                      Term
and Termination.


 


(a)           Term.  Subject to
Section 4(c), the term of this Agreement shall commence on the Effective Date
and shall continue for five (5) years, unless this Agreement is earlier
terminated in accordance herewith. 
Thereafter, this Agreement shall renew for successive one-year terms
unless either party hereto notifies the other party in writing of its intent
not to renew this Agreement at least ninety (90) days prior to the expiration
of the then-current term.


 


(b)                                 Termination.


 


(i)            Either party may terminate this
Agreement upon thirty (30) days written notice if the other party materially
breaches any of its representations, warranties, agreements or obligations
under this Agreement, provided, however, that this Agreement will not terminate
if the breaching party has cured the breach within the 30-day period.


 


(ii)           Either party may terminate this
Agreement immediately upon written notice to the other party if: (i) the other
party files or has filed against it a petition (or other document) under any
bankruptcy law or similar law that is unresolved within sixty (60) calendar
days after the filing of such petition (or document); (ii) the other party
proposes any dissolution, liquidation, composition, financial reorganization or
recapitalization with creditors; (iii) the other party makes a general
assignment or trust mortgage for the benefit of creditors; or (iv) a receiver,
trustee, custodian or similar agent is appointed or takes possession of any of
its property or business.


 


(c)           Obligations Upon Termination and
Expiration.  Except for termination by Publisher pursuant
paragraph 9(b)(i) due to an uncured breach by VCampus or termination by
Publisher pursuant paragraph 9(b)(ii) due to insolvency or bankruptcy of
VCampus, upon termination or expiration of this Agreement by either party,
VCampus shall retain a nonexclusive, transferable, worldwide, perpetual right
and license (with rights to sublicense) to continue to publish and distribute
the Online Material for any commercial purpose. Any continued distribution or
publication of the Online Material by VCampus or Publisher after termination of
this Agreement shall be subject to payment of the applicable royalty fees as
set forth in Section 4. This section 9(c) shall survive termination of the
Agreement.


 


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10.                               Confidential
Information.


 


(a)           Definition. Each party (a
“receiving party”) acknowledges that, from time to time, it may receive certain
information from the other party (a “disclosing party”), which is not generally
known to the public and that would be considered confidential and proprietary
by the other party (“Confidential Information”). Confidential Information
includes without limitation all competitively sensitive or secret business,
marketing and technical information disclosed by one party to another, such as
proposed products and services, customer lists and the contents of this
Agreement. Confidential Information does
not include information that: (i) is or becomes generally available to the
public other than as a result of a disclosure by a party or any of its agents,
representatives, affiliates, employees or consultants in violation of its or
their obligations of confidentiality hereunder; (ii) becomes available to
a party on a non-confidential basis from a source which is not prohibited from
disclosing such information to that party by a legal, contractual or fiduciary
obligation to the other party; (iii) is known to a party without restriction
prior to disclosure; or (iv) is independently developed by a party without use
of the other party’s Confidential Information.


 


(b)           Confidentiality Obligation.
Each party agrees that such party: (i) shall protect such Confidential
Information of the other party from unauthorized disclosure using the same
standard of care as such party uses to protect its own confidential information
of like kind; (ii) shall not disclose such Confidential Information to any
third party; and (iii) shall not use such Confidential Information (other than
as specifically authorized by this Agreement or as reasonably required to
perform its obligations hereunder) without the prior written consent of the
other party. These mutual obligations with respect to Confidential Information
shall continue for three (3) years following the date of termination of this
Agreement. Within 30 calendar days after a party’s request, or upon termination
of this Agreement, all materials or media containing any Confidential
Information shall either be returned to the disclosing party or destroyed by
the receiving party, at the disclosing party’s sole discretion, and each party
agrees to certify its compliance with this obligation; provided, however, that
VCampus may retain such information as is necessary to commercially exploit the
rights granted to it under Section 9(c).


 


(c)           Compelled Disclosure. In the
event that a receiving party becomes legally compelled to disclose any of the
Confidential Information of the other party, the receiving party will provide
the disclosing party with prompt notice thereof so that the disclosing party
may seek a protective order or other appropriate remedy or waive compliance
with the provisions of this Agreement. 
In the event that such protective order or other remedy is not obtained
by the disclosing party or the disclosing party waives compliance with the
provisions of this Agreement, the receiving party will furnish or cause to be
furnished only that portion of the Confidential Information that the receiving
party is legally required to furnish and will exercise commercially reasonable
efforts to obtain reliable assurances that confidential treatment is accorded
the Confidential Information so furnished.


 


11.                               General.


 


(a)           Assignment.
This Agreement shall be binding upon the parties’ respective successors and permitted
assigns. Neither party may assign this Agreement or any of its rights or
obligations hereunder (including transfers by change of control or operation of
law) without the prior written consent of the other party, and any such
attempted assignment shall be void, except that either party may assign this
Agreement, or any of its rights or obligations hereunder, upon written notice
to the other party, to any of its subsidiaries or affiliated companies, or to
any successor-in-interest, whether by merger or acquisition, without the
consent of the other party so long as such assignee is willing to assume and
fulfill the assignor’s obligations hereunder. Each party agrees that any
assignment hereunder shall not relieve the assignor of its obligations hereunder.


 


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(b)           Notices. Any notices or
communication under this Agreement shall be in writing and shall be hand
delivered or sent by registered mail return receipt requested or by confirmed
facsimile transmission to the party receiving such communication at the address
specified below:  if to Publisher, at
                                                                       ,
Attn:
                              ,
with a copy to
                                  ,
Attn:
                                ,
and, if to VCampus, at VCampus Corporation, 1850 Centennial Park Drive, Suite
200, Reston, VA 20191 – 1515, Attn: CEO, with a copy to Kevin A. Prakke, Wyrick
Robbins Yates & Ponton LLP, 4101 Lake Boone Trail, Suite 300, Raleigh, NC
27607; or such other address as either party may in the future specify to the
other party.


 


(c)           Governing Law. This Agreement
shall be governed by and construed in accordance with the substantive laws of
the Commonwealth of Virginia.


 


(d)           Relationship of the Parties.
Each party is acting as an independent contractor and not as an agent, partner,
or joint venturer with the other party for any purpose.  Except as provided in this Agreement, neither
party shall have any right, power, or authority to act or to create any
obligation, express or implied, on behalf of the other.


 


(e)           Force Majeure. Neither party
shall be responsible for delays or failure of performance resulting from acts
beyond the reasonable control of such party, including but not limited to, acts
of God, strikes, walkouts, riots, acts of war, epidemics, failure of suppliers
to perform, governmental regulations, power failure(s), earthquakes and other
natural disasters.


 


(f)            Counterparts. This Agreement
may be executed by the parties on any number of separate counterparts, and all
such counterparts so executed constitute one agreement binding on the parties
notwithstanding that the parties are not signatories to the same counterpart.


 


(g)           Survival of Certain Provisions.
Sections 4(c), 5, 7, 8, 9, 10 and 11 shall survive expiration of this Agreement
or termination of this Agreement by either party for any reason.


 


(h)           Amendments. No supplement,
modification, or amendment of this Agreement shall be binding unless executed
in writing by a duly authorized representative of each party to this Agreement.


 


(i)            Entire Agreement. The parties
have read this Agreement and agree to be bound by its terms.  This Agreement constitutes the complete and
entire agreement of the parties and supersedes all previous communications,
oral or written, and all other communications between the parties relating to
this Agreement and to the subject matter hereof.


 


(j)            Severability. If any
provision of this Agreement is held to be unenforceable, such provision shall
be considered to be distinct and several from the other provisions of this
Agreement, and such unenforceability shall not affect the validity and
enforceability of the remaining provisions. 
If any provision of this Agreement is held to be unenforceable as
written but may be made enforceable by limitation, then such provision shall be
enforceable to the maximum extent permitted by applicable law.


 


(The next
page is the signature page.)


 


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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the Effective Date.


 


	
  PUBLISHER:

  	
   

  	
   

  	
  VCAMPUS CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
  Date: 

  	
   

  	
   

  
													



 


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EXHIBIT A


 


PUBLISHER
CONTENT


 


 


	
  Author

  	
   

  	
  Title

  	
   

  	
  Release Date

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-1
















 


EXHIBIT B


 


DISTRIBUTION
FEES


 


[to be negotiated on a case-by-case basis]


 


All fees shall be paid on a calendar quarterly basis, not later than
forty-five (45) days after the end of the applicable quarter. A report shall be
provided with each payment in accordance with Section 4(b).


 


B-1
















 


EXHIBIT C


 


PUBLISHER’S
MARKETING PLAN FOR THE ONLINE MATERIAL


 


[to be provided by
Publisher]


 


C-1
















 


EXHIBIT
D-1


 


SPECIAL
PROJECTS


 


[to be negotiated, if applicable]


 


D-1